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Brown v Bower, Faber and Faber Ltd [2017] EWHC 1388 (QB), Warby J

Case date: 19/06/2017

Court: High Court

Area/s of law: Libel

Barrister/s: Catrin Evans QC

This was a claim for libel in relation to a short passage in Tom Bower’s book about Tony Blair published in March 2016 (“the Book”). It concerned words which according to the claimant, the current Labour Chief Whip and former minister in Blair’s governments, meant that he had been paying £100 a time to young male prostitutes to subject him to violent sexual acts or that there were strong grounds to so believe. The passage in question concerned the time in 1998 when the News of the World outed the claimant as gay. 

The Defendants applied before defence for a trial of four preliminary issues: meaning; whether the allegation had a defamatory tendency at common law; whether the allegation complained of had or was likely to cause the claimant serious harm pursuant to s.1 of the Defamation Act 2013; and whether the claim otherwise constituted a Jameel abuse of process [1]. 

The defendants had declined to plead or give express particulars of any substantive defence – arguing that they should not be put to their election as between a substantive defence and offer of amends under s.2 of the Defamation Act 1996 until after serious harm had been tested at a preliminary trial (“the Election Point”). But on the eve of the hearing the defendants stated that they felt compelled by the claimant’s assertion that by adopting the Election Point they were not helping the court further the overriding objective, to state that they reserved the right if appropriate in due course to plead a defence of truth to a meaning of reasonable grounds to suspect the claimant of paying a rent boy or rent boys for rough sex.  

The principal evidence relied on by the defendants to argue that serious harm was suitable for a preliminary trial was the many publications contemporaneous with the News of the World, and since, including prominent political memoirs, which the defendants asserted published substantially the same allegation as that complained of by the claimant in the Book but which he had not taken any action over in the preceding twenty years (“the other publications”). 

The court concluded: it was clearly just and convenient to direct a preliminary trial of meaning and defamatory tendency (as the claimant agreed) because such a trial would be short and inexpensive and would stand a reasonable chance of bringing an end to the proceedings [45].  

On the other hand, the court concluded it would not be just or convenient to direct a preliminary trial of the serious harm and abuse issues; the circumstances pointed firmly away from such an order [57]. In short this was because there was no general rule that it was desirable to try serious harm on a preliminary basis where it was challenged as weak or on the grounds of the Election Point. It was a case management issue - and there was no obvious saving in time or costs in doing so in this case. This was particularly so where it was highly uncertain whether a substantive defence would ultimately be advanced at trial and where therefore there may well be overlap between the issues at a preliminary trial and the main trial.  The court also stated that it would be undesirable to try the “novel issues of law” which the defendants were relying on whilst the judgment of the Court of Appeal in the important serious harm case of Lachaux v Independent Print Ltd was still awaited. 

There is an interesting discussion of the Election Point [53]-[56] – i.e. a rejection of the submission that there is a fundamental conflict between the high threshold of serious harm and the requirement upon a defendant who wishes to make an offer of amends implicitly to accept that that threshold has been met. 

Three other substantive points were relied on by the defendants as being relevant to their  defence at a preliminary issue (or full) trial of serious harm - described by the court as novel points of law of “some potential importance”, but which did not have to be decided at this point. One was the Public Figure Point – namely whether the allegation fell within the high level of tolerance for defamation which might be expected of the claimant as a public figure and politician [21].  A second was the Reverse Dingle Point  - whether the argument that the claimant had prospered in politics since the allegation had first arisen almost twenty years previously and despite the publication of the other publications - amounted to a “Reverse Dingle Point” which was unobjectionable (a reverse of the rule in Dingle v Associated Newspapers [1964] AC 371 that it is not legitimate for a Defendant to seek to reduce damages because other defamatory publications of the same subject matter have also damaged the Claimant’s reputation) [22]-[24]. Lastly, there was the Archive Point – whether it would be justified to make the defendants liable for any serious harm caused in the future by journalists/historians using the Book as a historical resource when there were plenty of other publications online which made substantially similar allegations and had not been sued on [21-25]. 


Catrin Evans QC (instructed by Wiggin LLP) represented the Defendants.

To view the judgment on Bailii please click here


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